N. Nathan and Benjamin R. Donolow, Philadelphia, for appellant.
Samuel Dash, Asst. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty., and Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 396]
Thomas Hicks was charged on Bill 353 with assault and battery, aggravated assault and battery, assault and battery with intent to ravish, and with rape. In other indictments William F. Murray and Daniel Smart
[ 173 Pa. Super. Page 397]
were charged with the same offenses. On Bill 355 all three were jointly charged with taking a female child under the age of sixteen years for the purpose of sexual intercourse and inveigling and enticing the child for that purpose. All of the charges were based on the acts of the defendants in relation to Clare Dorothy Feely, the 15 year old girl involved, on a single occasion, during the night of October 1, 1950.
When the cases were called for trial on November 10, 1952, counsel representing Thomas Hicks moved for a continuance on the ground that William F. Murray, charged with the same offenses, was an 'important defense witness' and was then in the armed service in Korea. The trial judge reminded counsel that the cases had been twice continued because of counsel's absence when called for trial on two previous occasions. And in denying the motion for further continuance the judge referring to Murray said: 'He may never come back. He may not come back for years. We cannot have our list held up because one of the defendants doesn't want to be tried until another defendant comes back from Korea'. Hicks in the absence of Murray was tried with Donald Smart and was found guilty on all of the charges. He was sentenced on his conviction of the charges of Bill 355. In this appeal, from that judgment in seeking a new trial, he charges the trial judge with reversible error in refusing to grant his motion for a further continuance of the trial, although the record does not indicate that he excepted to the ruling.
An application for a continuance is addressed to the sound discretion of the trial judge and in the absence of an abuse of discretion the action thereon will not be disturbed. Commonwealth v. Speroff, 169 Pa. Super. 197, 82 A.2d 569. And in determining whether a continuance should have been granted the
[ 173 Pa. Super. Page 398]
nature of the crime and the circumstances attending it are to be considered. Commonwealth v. Grosso, 169 Pa. Super. 606, 84 A.2d 239.
In the application for a continuance in this case the court was not informed by Hicks's counsel as to what was expected to be proved by Murray. Moreover there was no assurance that Murray would be available as a witness at any time to which the trial might be deferred, or in fact that he would testify if called. Cf. Commonwealth v. Winnemore, 1 Brewst. 356. The court was not obliged to take judicial notice, as is now contended, of the 'Army's defined policy for rotation of soldiers from Korea' and the record does not indicate that any representation, definite or otherwise, was made to the court ...